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Copyright and the Constitution

For the first time in 21 years, “new” works have fallen off copyright and into the public domain in the U.S. To honor the occasion I have decided to uploaded Cecil B. DeMille’s classic, The Ten Commandments, to YouTube. This was the first version of the film DeMille’s made, with Theodore Roberts as Moses, and it has long been overshadowed by DeMille’s 1956 epic, of the same name, with Charlton Heston as Moses. In addition to being black and white, and “silent” (music but no synced sound), the biggest difference with this version is that is only spends the first third or so of the film in Ancient Egypt. The rest takes play in present day, 1920s America, where two brothers lives different lives; one according to the Ten Commandments and one not. Can you guess what happens?

I upload this file to YouTube last night and immediately was flagged by one of their automated systems for violating the copyright of Paramount Pictures. The funny part is that I was told Paramount owned the “Audiovisual content” from 5 seconds into the film until 54 minutes and 23 seconds, which seemed very arbitrary and absurd, on top of the fact that it was simply wrong. But, I was not surprised. YouTube’s mechanisms of identifying content and defence of creators often seem to be lacking (a case in point). Fortunately, once an actual human being at Paramount looked at my counter argument, they released the hold on my upload, This only took about 10 hours, which is much better than the 30 days that they could have waited before responding, under YouTube’s rules. Thirty days in which I would be presumed guilty and unable to post my video.

So, putting aside my YouTube problems, why has it taken so long for old works like The Ten Commandments to finally be considered free to use by anyone? Because, in 1998, Congresses passed the Sonny Bono Copyright Term Extension Act (CTEA), named after the former pop star and husband of Cher, Sonny Bono, who served in the House of Representatives before dying in a skiing accident. The CTEA extended copyrights for 20 years, freezing out the public domain and keeping control of countless works in the hands of huge corporations. There were many power-plays behind this but the biggest name was Disney, which feared the inevitable lose of Mickey Mouse (the CTEA is jokingly known as the Mickey Mouse Protection Act).

Steamboat Willie (1928) is the the first cartoon short to feature Mickey and that means, under the laws as they existed in 1998, he should have become public property in 2004, but now he’s still legally considered Disney’s until 2024. I have a number of objections to copyright, both as a concept and the way in which it has grown ever-longer since the Statute of Anne first gave authors a term of 14 years, with a option for 14 more, back in 1710; but here I will focus on a Constitutional issue that I wish someone would raise in court.

In Article 1, Section 8 of the U.S. Constitution, proscribes certain, “Powers of Congress,” including the power, “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” When the CTEA was enacted, several parties backed a legal challenge against it, spearheaded by Harvard Law Professor and open culture activist, Lawrence Lessig, in which they argued that an extension of copyright terms was essentially a perpetual copyright and not in keeping with the “limited” nature of Congress’s power (Eldred v. Ashcroft (2003)). Writing for a 7-2 majority, famously liberal Justice, The Notorious RBG, ruled in favour of corporate interests and said that 20 years, on top of the 76 years these works already spent locked away from the general public, was still a “limited” time, and therefore not perpetual. Maybe her opinion would be different if Congress passed yet another extension on top of the previous extension, but so far that hasn’t happened.

Any husker du, while I agree with Lessig’s argument, in general, I believe the real focus should be on the nature of the phrase, “limited time to authors and inventors.” The Constitution does not assume that anyone has an exclusive right to his/her ideas, in the way that you do have a right to free speech, worship, etc. The Constitution assumes that ideas belong to everyone and the best an author or inventor can hope for is a limited window of time in which s/he can exclusively make a financial profit from them. So what does “limited” mean? Like, “cruel and unusual punishment,” the term is debatable and will change over time as public sentiments and conditions change, but it is not completely vague or nondescript. The only way that “limited” makes logical sense is in relation to the, “authors and inventors,” who are being granted, “exclusive rights.” If a copyright term can last longer than the average lifetime of a given author or inventor, then it is not “limited.” That is like me telling my son, “You’re iPod time will be limited today,” and him saying, “Okay, how about 25 hours?”

Unfortunately, this common sense view of the Constitution and Congress’s power to define copyright terms is not even a part of the conversation today, with most items copyrighted since 1978 staying out of the public domain for the entire life of the author, no matter how long s/he lives, plus an additional 70 years. In some cases this may financially benefit the children, grandchildren, or even great-grandchildren of an original creator of an idea, but first and foremost, this is a windfall for corporate entities, who can keep charging new generations for the privilege of seeing, hearing, playing, or otherwise benefiting from things that were created before their parents, grandparent, or even great-grandparents were born.

As technology is making it easier for the average person to disregard legal barriers and simply get on with expressing themselves, the timeframe allotted to creators to profit from their ideas should be growing shorter, to reflect the pace at which new things are assimilated into the wider culture and become a part of the general public. But instead, we have created a brave new world in which “limited” is practically meaningless and the public domain is little more than a trash heap of forgotten relics. At least, that is where things currently stand. Maybe, as we get closer to the liberation of Mickey Mouse, Superman, and other icons, more people will begin to ask, “Was the Constitution really designed to keep ideas out of the hands of the people?”

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